Why Not A Supreme Empiricist?

The 14th Amendment does not (yet?) enact Mr. Herbert Spencer's Social Statics.

In the last post, I suggested that we shouldn’t be selecting for judicial smartness, at least standing alone. Here, I’d like to add my two cents to the pile of unsolicited, and likely unused, advice for the Obama vetting team. The Administration should give some thought to picking a Justice who has prior background working with statistics, data collection, and more general empirical methods.

The footnote 17 debacle is, of course, a recent and salient example of how the Court can go wrong when evaluating empirical work:

“Cornell law professor Jeffrey Rachlinski told the Times that [Ted] Eisenberg’s study shows “punitive damages are pretty orderly,” yet Souter did not seem to think any studies had proven that point.

The Times asked Eisenberg for his reaction and summarized his response this way: “Professor Eisenberg struggled to stay respectful about the court’s approach to his work, saying he had been flattered to be cited at all. He finally settled on this phrase: ‘I believe the court went seriously astray’ in concluding that his work supported a reduced award.”

Statistical problems before the Court aren’t new – Brown & McClesky both come to mind – but it is likely that the Court will face increasingly sophisticated empirical methods in briefs over the next generation. Not only has the Supreme Court bar gotten much more sophisticated, but so have the underlying methods in empirical legal scholarship. As methods grow more sophisticated, it becomes harder for judges to play referees, since the errors (if any) in the parties’ positions are more subtle. A Justice who could be an intelligent consumer of empirical work, rather than a credulous user, would be a huge bonus.

That’s not the same as saying that a Ph.D. in stats, or political science, ought to be a credential. Lawyers who have litigated complicated employment, antitrust, or securities cases have to deal with statistics experts and are well exposed to the kinds of questions that need to be asked about their analyses. To a lesser extent, so are judges who have sat on such large commercial cases. The point is that at least some exposure in statistics and social science techniques is quickly becoming part of a well-rounded legal education. It should also be part of what we look for in a Justice.

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

2 Responses

I’m shocked. Someone who does “empirical legal research” wants an “empiricist” on the Court. I have noticed this trend elsewhere: those who work on area X, or using method Y, want a justice knowledgeable in X, or competent with Y.